Line to take - LTT155 - Gateway Reviews are an audit function
- FOI/EIR: FOI
- Section/Regulation: s33, s35
- Issue: Gateway Reviews are an audit function
- Source: Information Tribunal, High Court
- Details: OGC / Dziecielewiski / Oaten (2 May 2007); Office of Government Commerce v Information Commissioner & the Attorney General  EWHC 737 (Admin) (11 April 2008)
- Related Lines to Take: N/A
- Related Documents: FS50070196, EA/2006/0068 & EA/2006/0080, EWHC 737
- Contact: RM / GF
- Date: 28/05/2009
- Policy Reference: LTT155
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The Gateway Review process undertaken by the Office of Government Commerce in relation to public procurement exercises is an audit function as described by s33(1)(b).
Gateway Reviews as an audit function
In the case of OGC v Dziecielewiski and Oaten, the complainants made requests for information on the Gateway Reviews carried out in relation to plans to introduce ID cards which were refused under s33 and s35.
Major acquisition programmes and procurement projects in civil central government are subject to OGC Gateway Reviews. These are carried out at key decision points by a team of experienced people, independent of the programme / project team. Gateway Reviews are broken into a series of stages from 0 to 5:
- Gateway Review 0 — Strategic assessment
- Gateway Review 1 — Business justification
- Gateway Review 2 — Procurement strategy
- Gateway Review 3 — Investment decision
- [Gateway Review 4 — Readiness for service]
- [Gateway Review 5 — Benefits realisation]
There was some internal discussion during the Commissioner’s investigation as to whether Gateway Reviews did satisfy the criteria set down in 33(1)(b): “the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions”; the Commissioner concluded that Gateway Reviews were an audit function for the purposes of s33 (see para 4.10 of the DN FS50070196). However, the Commissioner went on to find that disclosure would not prejudice the audit function and so s33 was not engaged.
In this case, the reviews were ‘Gate 0 Reviews’ and their purpose was to find out whether the introduction of ID cards was possible, akin to a scoping or feasibility study. Although it might be expected that an audit function is normally carried out in retrospect, the Tribunal and High Court did not discuss the issue of whether ‘Gate 0 Reviews’ in this instance were an audit process. By finding that s33 was engaged, it is clear it was accepted that the Gate 0 stage of Gateway Reviews are accepted as an audit function. Ultimately, in line with the Commissioner’s decision, the Tribunal and the High Court found that the public interest favoured disclosure in relation to s35.
There is a detailed discussion of the Gateway Review process in the Tribunal decision (paras 9—21) which was acknowledged in the High Court appeal and provides useful background on the subject for caseworkers. Taking these findings into account, the Commissioner is of the view that all stages of Gateway Reviews are audit functions for the purposes of s33, and accordingly went on to consider whether disclosure would be prejudicial to this function.
Gateway Reviews and s35
Incidentally, in line with the Commissioner’s view, the Tribunal and Appeal found that, in this particular case, the Gateway Reviews in question also related to the formulation of government policy. The reviews were conducted at the ‘Gate 0’ stage, i.e. the initial stage and their purpose was to find out whether the introduction of ID cards was do-able. They were akin to feasibility studies and fed directly into the development of government policy in this area. It will not necessarily be the case that reviews conducted during the later stages of a procurement exercise could be said to relate to the development and formulation of government policy in the same way.
(*) For completeness - the High Court remitted the appeal back to a differently constituted Tribunal on a separate point - for reliance of the original Tribunal on the opinion of the Parliamentary Select Committee, which was a breach of Parliamentary Privilege.